Chad Flanders has posted this draft on SSRN. Here is the abstract:
Election law struggles with the question of neutrality, not only with its possibility – can election rules truly be neutral between parties? – but also with its definition. What does it mean for election laws to be “neutral”? This paper examines one form of election law neutrality, what I term “veil of ignorance rules.” Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections.
In my essay, I consider the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a “resident” of the city in which he plans to run for mayor (Rahm Emanuel’s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates.
Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Rick Hasen has recently dubbed “the democracy canon.” The canon suggests that ambiguous election law rules should be read in a way that maximizes voter choice and voter enfranchisement. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage – even if those rules serve to limit voter participation.
Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases.
I very much look forward to reading this–not only because it discusses the Democracy Canon but also because I am a big fan of Chad Flanders’ work!